USA v. William Grant Owens

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12420
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM GRANT OWENS,
a.k.a Whip,
a.k.a Surge,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
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2 Opinion of the Court 22-12420
D.C. Docket No. 1:20-cr-00122-TFM-29
____________________
Before J ILL PRYOR , NEWSOM , and G RANT, Circuit Judges.
PER CURIAM:
William Grant Owens appeals his conviction on eight
counts related to his participation in a long-running drug conspir-
acy. Owens presents two arguments on appeal: First, he argues that
his Sixth Amendment rights were violated when his counsel stipu-
lated over his objection that certain substances linked to Owens
tested positive for illegal drugs. Second, he contends that the court
plainly erred under Federal Rule of Evidence 404(b) when it admit-
ted evidence that Owens frequently exchanged drugs for sexual fa-
vors.
After careful review, we reject both arguments. First, Ow-
ens’s Sixth Amendment rights were not violated because the deci-
sion to stipulate to the test results was a tactical decision reserved
for his counsel. Second, the district court did not plainly err in ad-
mitting evidence of Owens’s sexual activities because such evi-
dence was intrinsic to the charged offenses. We therefore affirm
Owens’s conviction on all counts.
I. BACKGROUND
Owens was indicted alongside 38 codefendants for partici-
pating in a vast, multi-year conspiracy to distribute fentanyl, her-
oin, and methamphetamine throughout Mobile County, Alabama.
The operative indictment charged Owens with ten counts:
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22-12420 Opinion of the Court 3
conspiring to possess with intent to distribute controlled sub-
stances in violation of 21 U.S.C. § 846 (Count One), possessing with
intent to distribute various controlled substances in violation of 21
U.S.C. § 841(a)(1) (Counts Two, Three, Four, Five, Six, Seven,
Eight, and Nine), and unlawfully intimidating a witness in violation
of 18 U.S.C. § 1512(b)(1) (Count Twelve).1 The indictment also al-
leged that Owens’s drug activity resulted in the overdose death of
one of his customers, Kelsey Johnston, subjecting him to the en-
hanced penalty provisions of 21 U.S.C. § 841(b)(1)(C).
At trial, the government presented evidence that Owens was
a prolific member of the Crossley Hills Drug Trafficking Organiza-
tion who reveled in the power he held over his customers and ex-
ploited their addictions for money and sex. Witnesses—many of
them former codefendants—testified that Owens directed or par-
ticipated in “[h]undreds, if not thousands” of drug deals between
2016 and 2020, selling at least fifteen kilograms of methampheta-
mine and two to three kilograms of heroin and fentanyl during that
period. Doc. 2011 at 140.2 Many of these transactions took place at
the Rodeway Inn, a “dope hotel” frequented by “[b]uyers, addicts,
[and] prostitutes,” where Owens often set up shop. Doc. 2012 at 5;
Doc. 2011 at 143.
1 Counts Ten and Eleven of the operative indictment were brought solely
against Owens’s codefendants.
2 “Doc.” numbers refer to the district court’s docket entries.
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Prior to his arrest, law enforcement linked Owens to this
drug activity through a series of controlled buys, all but one of
which were videorecorded and shown to the jury. On August 21,
2018, for example, the Mobile County Sheriff’s Department used a
confidential informant to purchase 3.2 grams of methamphetamine
from Owens and Jessica Tubb, one of his primary coconspirators.
The next day, deputies executed a search warrant on the duo’s ho-
tel room, where they found another 4.1 grams of methampheta-
mine in Tubb’s bra. One week later, the Mobile Police Department
conducted its own controlled buy from Owens, this time yielding
0.9 grams of methamphetamine and 0.4 grams of heroin.3 Owens
was also involved in two separate traffic stops, during which offic-
ers found more drugs on the road just outside of his vehicle. Alt-
hough Owens continued to maintain his innocence on other
grounds, his counsel stipulated at trial that these substances tested
positive for illegal drugs.
In addition to traditional drug sales, witnesses testified that
Owens would frequently allow or even require his female custom-
ers to pay for their drugs with sexual acts—especially when they
were “dope sick” and desperate for their next high. This practice
was so common, in fact, that Owens kept two separate caches of
3 Officer Shawn Wood testified that the Mobile Police Department conducted
a second controlled buy on September 12, 2018, during which Owens sold 0.3
grams of heroin to a confidential informant. This conduct was charged in
Count Two of the operative indictment. According to Officer Wood, the
video recording of this controlled buy was lost in a computer crash before he
was able to review it. The jury ultimately acquitted Owens of Count Two.
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22-12420 Opinion of the Court 5
drugs: one to sell and one to exchange for sex, the latter of which
he called his “freak-and-geek sack.” Doc. 2009 at 105. Sometimes,
in lieu of having sex, Owens would withhold drugs from female
addicts and masturbate in front of them as they writhed from with-
drawals. According to one witness, watching addicts beg for drugs
“was like a power trip” for Owens, “almost like he was getting off
on it.” Doc. 2010 at 149.
Witnesses also described multiple instances in which Owens
“push[ed]” women to take heroin and fentanyl and then “force[d]
himself on them” when the drugs took hold. Id. at 151. On at least
one occasion, this practice turned deadly. At trial, Tubb told the
jury about a woman named Kelsey Johnston who came to the
Rodeway Inn looking for methamphetamine. Owens, who wanted
“[t]o have sex” with Johnston, gave her heroin laced with fentanyl
instead. Doc. 2011 at 184. Almost immediately after taking the
drugs, Johnston—who was not a known heroin or fentanyl user—
began to overdose. When other witnesses attempted to call 911,
they said, Owens “hit the receiver.” Id. at 242. He then sat in a chair
with “his hands in his pants” and “play[ed] with [himself]” while
they tried to revive Johnston. Id. at 259. Owens eventually walked
up to Tubb’s hotel room and asked to have sex with her instead.
Johnston was found dead the next day.
After the government’s case, Owens took the stand as the
sole witness in his defense. He adamantly denied selling drugs and
insisted that the witnesses against him were lying. With respect to
the controlled buys, Owens pointed out that he was never seen on
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6 Opinion of the Court 22-12420
video exchanging drugs for money. Finally, he suggested that any
incriminating audio evidence had been altered by the government.
The jury convicted Owens of eight of the ten counts against
him.4 The jury also found that Owens’s conduct in Counts One
and Six resulted in the death of or serious bodily injury to Johnston.
Owens now appeals his conviction.
II. STANDARD OF REVIEW
We review de novo whether a defendant’s Sixth Amendment
rights were violated. United States v. Terry, 60 F.3d 1541, 1543 (11th
Cir. 1995). Counsel’s admission of a defendant’s guilt over the de-
fendant’s express objection is a structural error, which cannot be
harmless. McCoy v. Louisiana, 138 S. Ct. 1500, 1511 (2018).
We generally review a district court’s evidentiary rulings for
abuse of discretion. United States v. Dodds, 347 F.3d 893, 897 (11th
Cir. 2003). If a criminal defendant raises an argument on appeal re-
garding an objection that he should have raised below but did not,
we review for plain error. United States v. Hoffman, 710 F.3d 1228,
1231–32 (11th Cir. 2013). Under plain error review, the defendant
has the burden to show that “there is (1) error (2) that is plain and
(3) that affects substantial rights.” United States v. Monroe, 353 F.3d
1346, 1349 (11th Cir. 2003) (alteration adopted) (internal quotation
marks omitted). The defendant then must show that the error “se-
riously affect[ed] the fairness, integrity, or public reputation of
4 The jury found Owens not guilty of Counts Two and Twelve.
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22-12420 Opinion of the Court 7
judicial proceedings.” Id. (internal quotation marks omitted). With-
out explicit, on-point language in the relevant statute, “there can
be no plain error where there is no precedent from the Supreme
Court or this Court directly resolving” the issue. United States v.
Kushmaul, 984 F.3d 1359, 1363 (11th Cir. 2021) (internal quotation
marks omitted).
III. DISCUSSION
On appeal, Owens argues that his Sixth Amendment rights
were violated when his counsel stipulated that the substances re-
covered by law enforcement tested positive for illegal drugs and
that the court plainly erred when it admitted evidence of Owens’s
sexual acts. We address each of these arguments in turn.
A. Owens’s Sixth Amendment Rights Were Not Violated
by His Counsel’s Stipulations
On the first day of Owens’s trial, the jury heard from three
law enforcement officers who testified about illegal drugs they re-
covered from Owens. After each portion of relevant testimony, the
government read a stipulation to the jury confirming that Owens
“admit[ted] and agree[d] that the substance[s] seized” by law en-
forcement had been “analyzed and tested” at a forensic laboratory
and that each substance tested positive for illegal drugs. Doc. 2008
at 90. Owens did not object to these stipulations, and the court in-
structed the jury that it “must accept [them] as true and proven for
the purposes of this litigation.” Id. at 127.
The next day, before testimony resumed, Owens protested
that he had “never agreed” to stipulate to the drug test results and
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8 Opinion of the Court 22-12420
worried that the jury would interpret those stipulations as an ad-
mission of guilt. Doc. 2009 at 6.5 The court explained to Owens
that “once a client decides to go to trial, there are some decisions
that the lawyer gets to make” and that stipulating to test results was
one of those decisions. Id. at 5. In light of Owens’s concerns, how-
ever, the court informed the jury that Owens had only stipulated
to the content of the test results and had “not concede[d] a connec-
tion between [himself] and the drugs.” Id. at 9. The government
went on to introduce two more test-result stipulations without ob-
jection.
Owens now argues that his trial counsel’s stipulations “in-
terfered with [his] right to determine the strategic objectives of his
trial,” amounting to “structural error” under the Sixth Amend-
ment. Appellant’s Br. at 16. We are not convinced.
The Sixth Amendment guarantees the assistance of counsel
to each criminal defendant. McCoy, 138 S. Ct. at 1507. Although the
defendant has the ultimate authority to make “fundamental deci-
sions” about his case, such as whether to plead guilty or assert his
innocence, United States v. Burke, 257 F.3d 1321, 1323 (11th Cir.
2001), decisions relating to trial management—including eviden-
tiary issues “and what agreements to conclude regarding the ad-
mission of evidence”—are left to the discretion of his counsel,
5 Owens’s counsel denied this, insisting to the court that he “talked to Mr.
Owens about possible stipulations” before they were introduced and that Ow-
ens had responded, “you are my lawyer; I’ll leave that up to you.” Doc. 2009
at 4.
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22-12420 Opinion of the Court 9
Gonzalez v. United States, 553 U.S. 242, 248 (2008) (internal quota-
tion marks omitted). Because the stipulations at issue in this case
fall into the latter category, they did not violate Owens’s Sixth
Amendment rights.
Owens’s reliance on McCoy is unavailing. In that case,
McCoy was charged with three counts of first-degree murder. 138
S. Ct. at 1506. McCoy’s counsel—over his client’s objections—told
the jury in his opening statement that McCoy had in fact commit-
ted the murders, emphasizing McCoy’s “serious mental and emo-
tional issues” in an unsuccessful attempt to avoid the death penalty.
Id. at 1507 (internal quotation marks omitted). Finding error, the
Supreme Court held that the Sixth Amendment granted criminal
defendants “the right to insist that counsel refrain from admitting
guilt.” Id. at 1505. Although it reaffirmed that “[t]rial management
is the lawyer’s province,” id. at 1508, the Court emphasized that “it
is the defendant’s prerogative, not counsel’s, to decide on the ob-
jective of his defense”—that is, “to admit guilt in the hope of gain-
ing mercy at the sentencing stage, or to maintain his innocence”
and aim for an acquittal, id. at 1505.
Here, Owens was permitted to decide the objective of his
defense. At Owens’s direction, his counsel asserted his innocence
and put the government to the task of proving his guilt beyond a
reasonable doubt. Contrary to Owens’s argument on appeal, his
counsel’s decision to stipulate to the drug-test results did not effec-
tively concede his guilt. Instead, Owens’s counsel made a tactical
decision to avoid repetitive, potentially distracting testimony about
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10 Opinion of the Court 22-12420
lab testing and force the government to prove that Owens both
“knowingly possessed” and “intended to distribute” the drugs in
question. United States v. Amede, 977 F.3d 1086, 1099 (11th Cir. 2020)
(quotation marks omitted) (outlining the elements of a § 841(a)(1)
charge). Because the decision to stipulate to the test results
amounted to a “strategic choice[] about how best to achieve [Ow-
ens’s] objectives” rather than a unilateral determination of what
those objectives were, Owens’s Sixth Amendment rights were not
disturbed. McCoy, 138 S. Ct. at 1508 (emphasis in original); see also
Poole v. United States, 832 F.2d 561, 564 (11th Cir. 1987) (holding that
stipulating to “such trivial and easily proven matters as to whether
banks were federally insured” in a federal robbery case was “a tac-
tical decision” reserved for counsel).
B. The District Court Did Not Plainly Err in Admitting
Evidence of Owens’s Sexual Activities
During its case-in-chief, the government presented exten-
sive evidence of Owens’s sexual misdeeds, including numerous oc-
casions in which he exchanged drugs for sex, used drugs to facilitate
his sexual advances, or otherwise sexually exploited his drug-ad-
dicted customers. Owens argues that the district court plainly erred
when it allowed this evidence before the jury because it “was not
probative of the charged offenses and [its] prejudicial effect was ob-
vious.” Appellant’s Br. at 10. Moreover, Owens says, these “lurid
details were text-book bad acts prohibited by Rule 404(b).” Id. at
16. Owens is correct that the actions attributed to him were “noth-
ing short of repugnant” and almost certainly prejudiced his
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22-12420 Opinion of the Court 11
defense. Id. at 24. But they were also highly probative of the of-
fenses charged. Because this evidence was intrinsic to the story of
Owens’s drug distribution activities and provided a motive for his
participation in the overall conspiracy, its admission did not
amount to plain error.6
Generally, evidence relevant to a charged offense is admissi-
ble at trial unless provided otherwise by statute, the Constitution,
the Federal Rules of Evidence, or the Supreme Court. Fed. R. Evid.
402. Evidence is relevant if “it has any tendency to make a fact more
or less probable than it would be without the evidence” and “the
fact is of consequence in determining the action.” Fed. R. Evid. 401.
Rule 404(b) provides an important carve-out to this frame-
work. It instructs that “[e]vidence of any other crime, wrong, or act
is not admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the
character.” Fed. R. Evid. 404(b)(1). But such evidence can be used
for other purposes, “such as proving motive, opportunity, intent,
6 Owens and the government agree that, because Owens did not object to this
evidence, plain error review applies. Before trial, however, Owens did move
to exclude testimony alleging that he was masturbating during Johnston’s
overdose. The district court denied that motion but granted Owens a “stand-
ing objection” to “the [Rule] 404(b) stuff” at trial, Doc. 210 at 180. Curiously,
in his brief before this Court, Owens does not appear to include that testimony
in his outline of improperly admitted evidence. Assuming that Owens’s cal-
lously timed masturbation is one of the “lurid details” forming the basis of this
appeal, Appellant’s Br. at 16, his argument still fails, even under an abuse of
discretion standard.
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12 Opinion of the Court 22-12420
preparation, plan, knowledge, identity, absence of mistake, or lack
of accident.” Fed. R. Evid. 404(b)(2). In addition, evidence of a de-
fendant’s conduct that is “intrinsic” to “the charged offenses” may
be admissible even where it would otherwise be barred by Rule
404(b). United States v. Wenxia Man, 891 F.3d 1253, 1273 (11th Cir.
2018) (internal quotation marks omitted). “[I]ntrinsic evidence is
admissible if it is (1) an uncharged offense which arose out of the
same transaction or series of transactions as the charged offense,
(2) necessary to complete the story of the crime, or (3) inextricably
intertwined with the evidence regarding the charged offense.”
United States v. Troya, 733 F.3d 1125, 1131 (11th Cir. 2013) (internal
quotation marks omitted). Evidence that is not part of the charged
offenses but “pertain[s] to the chain of events explaining the con-
text, motive, and set-up of the crime” is admissible if it is “linked in
time and circumstances with the charged crime, or forms an inte-
gral and natural part of an account of the crime, or is necessary to
complete the story of the crime for the jury.” Id. (quotation marks
omitted).
“All admissible evidence, whether intrinsic or extrinsic,
must be weighed” under Rule 403. Id. That rule permits a district
court to exclude relevant evidence if the danger of unfair prejudice,
among other things, substantially outweighs its probative value.
Fed. R. Evid. 403. Exclusion under Rule 403 is an extraordinary
remedy that courts should employ “only sparingly since it permits
the trial court to exclude concededly probative evidence.” United
States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006) (alteration
adopted) (internal quotation marks omitted).
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22-12420 Opinion of the Court 13
Here, the district court did not err in admitting evidence of
Owens’s sexual acts because that evidence was an “essential part of
the chain of events explaining the context, motive, and set-up” of
Owens’s conspiracy to distribute—and actual distribution of—con-
trolled substances. United States v. Fortenberry, 971 F.2d 717, 721
(11th Cir. 1992). Specifically, evidence showed that Owens ac-
cepted both money and sex as payment for drugs that he distrib-
uted in furtherance of the conspiracy. See United States v. Dixon,
901 F.3d 1322, 1345 (11th Cir. 2018) (holding that evidence of un-
charged robberies was intrinsic to the charged drug conspiracy be-
cause the government “described a conspiracy in which the money
for the drugs came from robberies and the status of members was
tied to robberies and violence” (alteration adopted) (internal quo-
tation marks omitted)). The evidence also showed that Owens was
motivated to join the conspiracy at least in part by his desire for
power and sexual pleasure. See United States v. Lehder-Rivas, 955
F.2d 1510, 1518 (11th Cir. 1992) (holding that evidence that the de-
fendant admired Hitler and other “revolutionaries” was intrinsic to
a drug conspiracy charge because it supported the government’s
argument that he was motivated by a desire to “facilitate the de-
mise of the United States by importing large quantities of co-
caine”).
Further, the evidence was not barred by Rule 403. Although
it was undoubtedly inflammatory, any danger of unfair prejudice
did not substantially outweigh its significant probative value. See
Fortenberry, 971 F.2d at 721 (holding that evidence linking the de-
fendant to a double murder was intrinsic to his gun possession
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14 Opinion of the Court 22-12420
charge and was not unfairly prejudicial, despite the “violent and
emotional nature” of the evidence). Moreover, the fact that Owens
was acquitted of two counts against him suggests that the jury was
able to assess his guilt fairly and objectively, even in the face of
scandalizing evidence. See United States v. Loyd, 743 F.2d 1555,
1563–64 (11th Cir. 1984) (noting that the jury’s decision to acquit
on certain counts shows that it “meticulously sifted the evidence”
(internal quotation marks omitted)).
AFFIRMED.
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